The Great Monetization Discussion

[Electro]

I think paid content attracts legal attention that this community doesn't really want.

The gist of it all right here.

Start as a place for people to exchange money for content, and a target will appear on this site very quickly.

I agree with this.

I notice that paying a price doesn't necessarily mean you are getting a good product, as an example I'm seeing lots of 3D prints on Cults3D with a cost that are lower quality(bad sizing for printable toys, design that doesn't work, or obviously not tested for printability) than free stuff in the same place or at other sites. This is why I don't buy porn, it is so hit and miss that I'd rather not pay and be disappointed. I think this is where the donation model works but even with that being said I'm less likely to want to produce something(tease or video) of my own when others are gripping for money on a platform because to me this is a community where we produce the things we want to share for others.

[Leiasolo]

Y'all missed the forest for the trees. The point was to provide an example of obviously protected fair use, describe the key factors in determination of fair use for CH videos and explain how they might apply.

Firstly, Weird Al doesn't even sample what he parodies. The performance, one of the two key domains of any given recorded musical work, is entirely new. If you commit copyright violation for replicating a music album, you're copying the performance, that's what you're getting sued over.

Does this detail even matter to the point I was making?

Secondly, Weird Al doesn't just rely on the fact that his works are fair use to avoid legal repercussions for his parodies. He asks the artists he parodies for permission, and to my reading of his FAQ, he implies he pays out a "rightful share" of the royalties (though he only strictly refers to his own share there). He may or may not need to, as far as I know he's never been sued to it's impossible to know for sure —

You're correct that Weird Al doesn't just rely on fair use. Weird Al goes above and beyond what is required by US law. Weird Al is a great guy, and the way he participates in the industry is probably strongly related to how long he's been in the industry. You're correct he's never been sued, to the best of my knowledge, he's only had one artist that was temporarily unhappy with him, because he got permission from the record company but not from Coolio himself when he made Amish Paradise. Since then, Coolio has come around on the issue, and Weird Al has made it a point to always talk to the artist, not because he HAS to, but because Weird Al is a stand up guy. As to the revenues, Weird Al approaches the artists with an offer of a percentage of the revenues when he requests permission to do the parody, again because he's a stand up guy, not because the law requires a "rightful share", Weird Al personally believes that he owes a "rightful share" to the artist.

So, at this point let's separate the fact that Weird Al is an amazing and very considerate person, and what he actually does, from what he is legally required to do/can get away with. Google for "is weird al fair use", you'll find dozens of articles that explain that his parodies would absolutely be defensible under fair use, but as stated above he rocks and goes the extra mile to avoid having to defend himself in court, as well as keeping a good name in the music industry. One of those articles is even the FAQ you linked.

remember, fair use is a defence against copyright violation torts, it isn't a right that permits the use. If you're relying on fair use, you already have committed copyright violation, the question becomes if your use is defensible as fair use.

Wrong, you haven't committed a copyright violation until you're found guilty in court. If you go to court and win the case with a fair use defense, then you didn't commit a copyright violation. Kyle Rittenhouse didn't commit murder(here I'm speaking completely legally, not my moral opinion, a court found him not guilty, you can disagree with the jury's finding or how the trial was held, how the judge heard the case, on moral grounds, etc.). He used a self defense defense. Certainly people died, and he was responsible for killing them, but it's not considered murder until he's convicted, and he wasn't.

There's also zero reason for the "it's free marketing!" argument to ever work out. I'm pretty sure that's probably been tried in the past. "The effect of the use upon the potential market" doesn't mean "does this make the work more marketable or popular", it means "has the violation usurped the original work's market and thus taken all the money that would have otherwise gone to the owner of the original work's copyright". And let's be real, in a scenario where these PMVs were mainstream, the answer would be obviously yes; people are masturbating to the PMVs instead of the original works.

You're right, it's not about making it more marketable or popular. It's about the monetary effect on the original work. Note: I said you'd have to have hard data to back up such a claim. For example: we link to adultdvdempire or some such seller for all of the content we use, and we have evidence that we're actually driving sales of the original content. People are buying the original content after seeing clips in our CH video.

As for the 'free marketing' argument, yeah it's a messy one. And even if a work is effectively free marketing which adds to the originals sales, it can still violate copyright law. Where this becomes a head trip is, the creation might be illegal and violate copyright law, but potentially have caused no damages or loss to the original owner which can be sued for. I'm sure there's some case history of that sort of thing, but I am not familiar with it.

You're correct it's messy, as already stated, I noted you'd have to have hard data to back it up. You're also correct that you can pass this test and still be violating copyright, it's a balance of all the factors. I clearly stated what I believe the 3 most important factors would be. The 4th is "nature of the copyrighted work", it's clear that the work is already published, and that it's non-factual but fictional for entertainment. That factor is pretty clear cut, the fact that it's published work keeps it out of the unpublished domain which is very dangerous. The fact that it's non-factual but for entertainment cuts against the CH fair use defense, which means it'll have to make its case entirely on the 3 points mentioned.

[Larceny]

You've spent an awful lot of time writing an awful many words only to, well, miss the forest for the trees.

Y'all missed the forest for the trees. The point was to provide an example of obviously protected fair use, describe the key factors in determination of fair use for CH videos and explain how they might apply.

Firstly, Weird Al doesn't even sample what he parodies. The performance, one of the two key domains of any given recorded musical work, is entirely new. If you commit copyright violation for replicating a music album, you're copying the performance, that's what you're getting sued over.

Does this detail even matter to the point I was making?

Yes. It's actually pretty weird that you didn't get this: I'm illustrating that Weird Al is not a good basis for arguing that PMVs could employ the fair use defense.

Secondly, Weird Al doesn't just rely on the fact that his works are fair use to avoid legal repercussions for his parodies. He asks the artists he parodies for permission, and to my reading of his FAQ, he implies he pays out a "rightful share" of the royalties (though he only strictly refers to his own share there). He may or may not need to, as far as I know he's never been sued to it's impossible to know for sure —

You're correct (...). As to the revenues, Weird Al approaches the artists with an offer of a percentage of the revenues when he requests permission to do the parody, again because he's a stand up guy, not because the law requires a "rightful share", Weird Al personally believes that he owes a "rightful share" to the artist.

Weird Al's motivation is of little importance here. What you are describing is him buying a license for the compositions he parodies. That is, fundamentally, why he is able to do what he can do, regardless of fair use existing or not; Weird Al doesn't take the chance.

So, at this point let's separate (...) what he actually does, from what he is legally required to do/can get away with.

No. You're simultaneously trying to use Weird Al as a practical example of fair use, when he distinctly doesn't use the fair use defense at all. His use of copyrighted materials is fundamentally distinct from how PMVs use copyrighted materials, and in that sense, the works of Weird Al are a fundamentally poor demonstration of the idea that PMVs would be considered fair use.

Also, could you, like, stop dedicating 60% of your paragraphs to praising Weird Al? That's weird, and it frankly makes your argument difficult to parse.

remember, fair use is a defence against copyright violation torts, it isn't a right that permits the use. If you're relying on fair use, you already have committed copyright violation, the question becomes if your use is defensible as fair use.

Wrong, you haven't committed a copyright violation until you're found guilty in court.

Wrong, actually. You violate copyright if you violate. The. Copyright.

That's how that works. The copyright violation is the act itself, regardless of it being damaging or not. Fair use is used to determine that act as being non-damaging.

Kyle Rittenhouse didn't commit murder(here I'm speaking completely legally, not my moral opinion, a court found him not guilty, you can disagree with the jury's finding or how the trial was held, how the judge heard the case, on moral grounds, etc.). He used a self defense defense. Certainly people died, and he was responsible for killing them, but it's not considered murder until he's convicted, and he wasn't.

what the fuck

Not to mention that this example actually proves my point (Rittenhouse did kill people, and self defense is the defense against it being murder, so the act still occurred), why in the name of any god would you

like

what, my dude, why is this the argument you rely on

[edger477]

Not to mention that this example actually proves my point

It does not. In US law the act of taking one's life is not automatically a murder (and there are many examples you can easily find where it did not even go to court, if the circumstances are clear enough police does not indict person or raise charges into court).

He said that act of taking someone's video and using it to create CH is not automatically a copyright violation - and this is technically true (the example holds water), but in practice is so far only true because copyright holders do not really care (inflicted damage is low). And while that might be really (practically) true for some video(s), we cannot know that for sure because there are no precedents.
It would take someone to publish their creation as original, then when company claiming you infringed their copyright takes it down (using DMCA), they would need to file counter-notification to say "this is my original work" and then they have to get sued and resolve it in court. I would guess this would end with side having more money and better lawyers winning, but then we would have precedent saying why it was (not) fair use.

While monetization definitely affects determination of fair use (in non-beneficial way), getting video for free does not automatically mean it is fair use and anyone having it in possession might actually be culpable (so not only creator but anyone consuming the copyrighted content without paying for a copy). The laws might be different in different countries and it does not matter whether they are "correct" or "moral" - they are there and affect people.

As andrus said already, I think this whole topic is better away from the forum.

[Andrus]

There are powerful forces in U.S. politics, and mostly unique to the U.S., that will target sexual content given an excuse. Paid content involving intellectual property violations is a good excuse. These campaigns can be extra-territorial. Look at Pornhub as a larger example.

I do appreciate the effort that is put into these videos and would donate. It's much like the pay-what-you-can model for most musicians (because only big name artists pay the fee to do covers). But an expectation of riches is unrealistic. As one of my musician friends said," you don't play music to get rich. You do it for the love of it."

[Leiasolo]

You've spent an awful lot of time writing an awful many words only to, well, miss the forest for the trees.

Y'all missed the forest for the trees. The point was to provide an example of obviously protected fair use, describe the key factors in determination of fair use for CH videos and explain how they might apply.

Firstly, Weird Al doesn't even sample what he parodies. The performance, one of the two key domains of any given recorded musical work, is entirely new. If you commit copyright violation for replicating a music album, you're copying the performance, that's what you're getting sued over.

Does this detail even matter to the point I was making?

Yes. It's actually pretty weird that you didn't get this: I'm illustrating that Weird Al is not a good basis for arguing that PMVs could employ the fair use defense.

And how does the detail of the difference between the performance and the recording make that point? At best you're arguing that Weird Al uses less of the original work and so if he had to he could make a better case on percentage of original content used. One of the 3 points I brought up, and said was important to consider. Weird Al could absolutely use a fair use defense if he were taken to court, and there's a number of articles already written that cover that he'd win the case, even without going the extra mile that he does. That makes him an example of how fair use could be applied. You seem to be mistaken that I'm arguing PMV's could successfully employ a fair use defense. I very much believe that's a matter of debate. At the moment, I'd actually say PMV's probably wouldn't pass muster and would end up being found guilty of copyright infringement. But that's actually for a court to decide.

Secondly, Weird Al doesn't just rely on the fact that his works are fair use to avoid legal repercussions for his parodies. He asks the artists he parodies for permission, and to my reading of his FAQ, he implies he pays out a "rightful share" of the royalties (though he only strictly refers to his own share there). He may or may not need to, as far as I know he's never been sued to it's impossible to know for sure —

You're correct (...). As to the revenues, Weird Al approaches the artists with an offer of a percentage of the revenues when he requests permission to do the parody, again because he's a stand up guy, not because the law requires a "rightful share", Weird Al personally believes that he owes a "rightful share" to the artist.

Weird Al's motivation is of little importance here. What you are describing is him buying a license for the compositions he parodies. That is, fundamentally, why he is able to do what he can do, regardless of fair use existing or not; Weird Al doesn't take the chance.

Absolutely correct. In your previous post it seemed you were UBER offended that I might have besmirched Weird Al, so I was just making it clear that I understand exactly how Weird Al operates, and that it's worthy of respect, and I have no ill will towards him.

Only nitpick is that his methodology isn't "why he is able to do what he can do", fair use is exactly why. His methodology is why he's respected rather than hated.

So, at this point let's separate (...) what he actually does, from what he is legally required to do/can get away with.

No. You're simultaneously trying to use Weird Al as a practical example of fair use, when he distinctly doesn't use the fair use defense at all. His use of copyrighted materials is fundamentally distinct from how PMVs use copyrighted materials, and in that sense, the works of Weird Al are a fundamentally poor demonstration of the idea that PMVs would be considered fair use.

Also, could you, like, stop dedicating 60% of your paragraphs to praising Weird Al? That's weird, and it frankly makes your argument difficult to parse.

His use isn't fundamentally distinct(at least not legally), his methodology of going the extra mile is, but again, he's not required to do any of that, and many legal experts over the years have said so. Again, you're mistaken that I'm trying to make the argument that PMV's would absolutely succeed on a fair use defense. I'm trying to point out the 3 points of consideration in determining whether they might be considered fair use. I've only employed Weird Al as an example of someone that if it came down to it, would absolutely succeed in using such a defense. Do you think he would fail? Why are you arguing?

Again, the blurb about praising Weird Al, was to head off what I thought was you taking offense on his behalf. I didn't want to get stuck trying to argue whether he's a good guy or not, it would be derailing.

remember, fair use is a defence against copyright violation torts, it isn't a right that permits the use. If you're relying on fair use, you already have committed copyright violation, the question becomes if your use is defensible as fair use.

Wrong, you haven't committed a copyright violation until you're found guilty in court.

Wrong, actually. You violate copyright if you violate. The. Copyright.

That's how that works. The copyright violation is the act itself, regardless of it being damaging or not. Fair use is used to determine that act as being non-damaging.

Still wrong, in the US, you are innocent until proven guilty. You have not committed a crime until a court determines that you have. Right up until the verdict is read you're innocent. Copyright violation is a crime, you have not committed it(you're innocent), until the verdict comes back that says you're guilty of committing it.

Kyle Rittenhouse didn't commit murder(here I'm speaking completely legally, not my moral opinion, a court found him not guilty, you can disagree with the jury's finding or how the trial was held, how the judge heard the case, on moral grounds, etc.). He used a self defense defense. Certainly people died, and he was responsible for killing them, but it's not considered murder until he's convicted, and he wasn't.

what the fuck

Not to mention that this example actually proves my point (Rittenhouse did kill people, and self defense is the defense against it being murder, so the act still occurred), why in the name of any god would you

like

what, my dude, why is this the argument you rely on

I rely on it because it's a very recent, high profile example, that everyone is(or should be) familiar with. Also one where a LOT of people didn't understand the legal nuances. You appear to have made the same mistake here. Do you understand the difference between "Killing" and "Murdering"? It doesn't appear you do. You see "killing" is to cause the death of another. "Murder" is a legally defined crime, where killing is a component, but not the only one. All murders involve killing someone, not all killing involves murdering someone. You're right that Rittenhouse killed people, and you're right that he used self defense as his defense against a charge of murder. But when you say "the act still occurred", it's important to point out that the act wasn't murder, it was killing. Killing isn't a crime, murder is. Copying something isn't a crime, copyright violation is. Copyright violation isn't the act itself, it's the guilty verdict. Copying the material is the act. If you copy material, get taken to court, and successfully employ a fair use defense, then you are not guilty of copyright violation. It's not that you committed a crime, and then you're taken to court to see if we're going to let you get away with it. You commit an act, and we take you to court to determine if that action was actually a crime. Innocent until proven guilty.

[Larceny]

Okay, if you honestly think copyright violation is a crime -- it's not, it's a civil tort -- that you weren't willing to even check that before posting demonstrates that there is no value to this conversation. Because I can and would just continue to repeat things I know to be true, basic facts about the law such as what fair use mechanically is, and you'd just continue to say nonsense, like copyright violation apparently being a criminal act.

For everyone else, it's not a criminal act. Copyright violation cases are civil suits. It's actually pretty easy to check that, you can literally just search the web for that information.

This is ridiculous.

[Leiasolo]

Screenshot_20220911-164957_Chrome.jpg (193.36 KiB) Viewed 1888 times

[Helequin]

This is running way off topic for how or if creators here should monetize.

For the sake of trying to get people complete information - the criminality or civil liability of violating copyright laws will depend on jurisdiction. What I can tell you for sure is typical Western legal systems there is a good chance it can be both.

Canadian Copyright Act, Section 42 says (paraphrased): anyone who knowingly violates copyright commits a (criminal) offense. Notably in Canada this is sale, rental, distribution or public exhibition of the copyrighted work, not mere possession.

To bring the legal side of this back on topic, I can only suggest creators who are wanting to share and distribute their work and have the notoriety to do so in large numbers, to double check your own country's laws. If they are particularly harsh or if there are allowances for non-commercial projects these might be good things to be aware of.

[Larceny]

Yeah, in the case of mass infringement, but that's not what we're talking about. Also, learn to cite the law properly, a random screengrab from nowhere does not an argument make.

In the US, cases of copyright infringement involving someone using one work in another work are litigated in civil courts. The fact that there are potential criminal penalties to disincentivize filesharing or selling reams of bootleg DVDs doesn't change the reality of how actually applicable matters are actually litigated.

[CantoFan123]

Any last thoughts on this matter Pseudonym? Did this thread help you or change your opinions in any way? If there was one things everyone agreed on it's that your work is inspired!

[Pseudonym]

Any last thoughts on this matter Pseudonym? Did this thread help you or change your opinions in any way? If there was one things everyone agreed on it's that your work is inspired!

Yes,this whole discussion made me reconsider some of my opinions and my mindset. It gave me a chance to really think about why I'm creating these things.

The answer is - because it feels deeply meaningful to me.
It is so simple, that it's sometimes easy to get distracted and forget.

Couple of days ago, I've changed my release schedule for CH Replay to irregular updates.
For now, I've put aside my dreams of getting part time job in order to have more time and energy for my projects. Instead, I'll be focusing on things that will excite me and feel meaningful at the moment. Right now, it is experimenting with VR editing and most recently, playing around with scripting for The Handy.

I'll continue experimenting and trying new things, including different monetization models, but only if I'm sure it is done respectfully towards the community AND towards myself. I also don't see it as a goal anymore. More like a possible side product that will actualize itself if it's meant to be.

So, yes. If anything, this discussion made me realize some things. Thank you.
I hope it was helpful to you as well.

[A Ghoul Editor]

It gave me a chance to really think about why I'm creating these things.

The answer is - because it feels deeply meaningful to me.
It is so simple, that it's sometimes easy to get distracted and forget.

[CantoFan123]

I hope it was helpful to you as well.

I did find it helpful and I learned way more about copyright law than I ever thought possible on a porn forum haha. I'm bummed you weren't able to turn this into a part time job but I'm thrilled you're going to continue to work on things you love. There is a reason starving artists are called starving artists I guess.

[zebbg69]

Yes,this whole discussion made me reconsider some of my opinions and my mindset. It gave me a chance to really think about why I'm creating these things.

The answer is - because it feels deeply meaningful to me.
It is so simple, that it's sometimes easy to get distracted and forget.

That's a good answer. I'm glad this massive "castle of text" thread led to a good place.

I also don't see it as a goal anymore. More like a possible side product that will actualize itself if it's meant to be.

This could be one of those times when relaxing your grip on an outcome is precisely what allows it to happen, in a different way than expected. Unfortunately one doesn't get to control that outcome! (kind of the whole point) Good luck with it all. You are a top creator and a treasure to this community.